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So Brad DeLong is wondering whether he should write to William Drummond, Chair of the Berkeley Division of the University of California Senate, and ask him “to convene a committee to examine whether John Yoo’s appointment to the University of California faculty should be revoked for moral turpitude.” The only thing holding DeLong back is the example of Ernst Kantorowicz, who, as a University of California faculty member in 1949, refused to sign — and eloquently defended his refusal to sign — an anti-Communist loyalty oath which was being presented to the faculty as a requirement for employment. Kantorowicz’s defense of the necessary intellectual independence and free discernment of the professoriate is indeed stirring, but DeLong doesn’t explain exactly why he thinks it bears on the very different case of Yoo. Presumably he is suggesting that it might not be wise to try to fire or punish professors because one disagrees with their politics, or rather, on grounds that might readily be interpreted as partisan.

Needless to say, DeLong’s commenters — and those on Crooked Timber, where Henry Farrell has raised the issue — are having none of it. They want blood (and Farrell does too). To some extent this is understandable: those memos of Yoo’s are horrifying, to me anyway, and I would like to see him, and everyone else in the Bush administration who was involved in the creation and maintenance of a regime of torture, subjected to whatever legal and judicial scrutiny it is possible to subject them too.

But that doesn’t mean that it makes sense to use the workplace — and especially the academic workplace — as a substitute for the legal system when you think that system isn’t getting the job done, whether through corruption or through red tape. This is a little too close to vigilantism to suit me; and the advocates for getting Yoo fired assume — as cheerleaders for these kinds of campaigns always assume — that their own profession will forever be controlled by people who think like them. DeLong’s Kantorowicz analogy may be flawed, but at least it can remind us that that confident assumption is an untenable one.

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This is a very quick, not very considered reaction, but here it is for what it’s worth. If Yoo was derelict in his responsibilities – as statements like “unusual lack of care and sobriety” and “more an exercise of sheer power than reasoned analysis” – and gave manifestly bad advice to his client (the Administration) that it was OK to commit what may well be war crimes, then he should face the prospect of disbarment, to say nothing of dismissal, regardless of whether the legal system ever acts or is able to act. The issue isn’t his politics, nor is it really the moral rightness of the decision to proceed with torture; it’s whether he showed a contempt and disregard for the law. The example of Kantorowicz is not apposite.

You wrote, “To some extent this is understandable: those memos of Yoo’s are horrifying, to me anyway, and I would like to see him, and everyone else in the Bush administration who was involved in the creation and maintenance of a regime of torture, subjected to whatever legal and judicial scrutiny it is possible to subject them too.”

What exactly do you want to see happen? Who do you want to see doling out punishment? Specifically, who else do you think deserves punishment?

Yoo’s wrongs are pretty clear. He sacrificed whatever scruples or ethics he had to suck up to the president. He served lies to power. I believe that’s the basic truth of it. Not really something that would recommend one for a position as a law professor. There is also such a thing as public censure. When someone behaves in a particuarly badly in the public sphere, the public sometimes expresses it’s dismay. It is a way of enforcing group standards. Sometimes it can be harmful, but in this case it’s highly appropriate.

Noah, that’s helpful. One of the interesting things about the profession of law is that it has these time-honored means of admitting people to the profession, monitoring their faithfulness to its standards, and censuring or excluding them when they fail to live up to those standards. Academia doesn’t have a system like that, at least not in explicit and codified form. So when the academic and legal communities overlap, which standards prevail? I don’t know the answer to that. (This is why I’m not sure that c.w. is right, though he may be.)

Tim, note that I didn’t say that Yoo or anyone else should be punished, but that their actions should be scrutinized. I don’t know enough about the laws involved to say definitively that Yoo violated them, and I do want to preserve the presumption of innocence. But the matters on which Yoo gave advice have been enormously consequential for the character of this country as well as its political fortunes, and for people imprisoned by the U. S. Government: thus my recommendation of close scrutiny.

If Yoo were to be fired because his scholarship offended someone’s political views, that would clearly be bad. The independence of the university is meant to keep it out from under the state’s thumb. It’s the only real intermediate institution left — the church is weak, the family is weak, the guild is gone (the AFL-CIO doesn’t count) — and academic independence is important to keeping it strong.

But no one is talking about firing Yoo for his academic work. The academy has no obligation to support — or even condone — the actions of the state, and in this case, they shouldn’t. If an oubliette is out of the question, firing him sounds like a good plan to me.

Nicola, the picture of the university you paint is of the private university — and perhaps not even of that, since most private universities in America receive untold millions of Federal dollars. And of course public universities, like those in the University of California system, are even more deeply entangled with government. I’m not sure how much these facts have much bearing on the Yoo situation, but “academic independence” is something that no longer exists in this country, which (in my view) is problematic in a hundred ways.

It’s interesting that there was a massive outcry from the Right to sack Ward Churchill, an admittedly contemptible man who was nonetheless a marginal figure in American life and academe, while there is only a small outcry from the Left (and none whatsoever from the Right, even from its more “independent” voices) to sack Yoo, even though his actions had real consequences and weren’t just cheap rhetoric. That says a lot, and I’ll leave it up to the readers to figure out what it says.

Mark, they are interestingly different situations. The Right’s accusation against Churchill — in addition to the less partisan claim that much of his research was plagiarized or fabricated — was that he was using his position in a public university to promote a political agenda. But as far as I know, no one is claiming that Yoo has done anything wrong in his current job. The question in this case is whether it’s appropriate to seek a professor’s dismissal for things he did before taking his academic position. I don’t think Brad DeLong is suggesting that Yoo has been guilty of moral turpitude in his academic position. This is perhaps another reason to advocate legal rather than professional action against Yoo. I don’t think there were any obvious legal avenues to pursue regarding Churchill.

Alan, that’s an excellent point; I mostly think about the relationship between the academy and the state from my own school, which understandably looks different than the University of California. A lack of academic independence is troubling, but so is a lack of normative claims on the part of educational institutions. The liberal idea that “we’ll put everything out there and you can pick!” — or worse, the conception of education as the accumulation of facts — is one of the deepest problems in universities today.

Nicola, you’re precisely right, and this incoherence of purpose is what makes it almost impossible for universities to deal in a reasonable and responsible way with with either Ward Churchill or John Yoo. Ernst Kantorowicz’s appeal to the nobility of purpose represented by the academic gown — well, it’s hard not to hear that as an indictment of many of today’s academic “leaders.”

I think it really boils down to whether you think Yoo was voicing an academic/political/legal opinion or whether you think he was committing an act of moral turpitude by aiding and abetting torturers.

Having a sexual affair with a student might not be illegal, but the university can recognize it as a moral scandal and fire you for it. I wish the moral scandal of helping the USA become a nation that tortures people were equally obvious.